By Joel Rosenblatt
As Bayer AG girds for two more trials over its Roundup weed killer, lawyers for consumers are angling to build on their first three courtroom victories that resulted in damages awards totaling $191 million.
The question for Bayer is, what can it do differently this time?
The German drug and chemical giant, which acquired Roundup maker Monsanto Co. in 2018, is trying to reverse the momentum of a litigation storm that has generated tens of thousands of cases alleging exposure to the herbicide causes cancer.
While a court-appointed mediator handling negotiations over a multibillion-dollar settlement has said he expects a deal soon, jury selection is under way in state court in Martinez, California, within 25 miles of the previous trials in San Francisco and Oakland. A judge on Friday postponed opening arguments in another trial in St. Louis, Monsanto’s former headquarters and the location of many of the suits.
“If all things are the same or similar to the last three trials, I would expect another nuclear verdict,” said Rachel York Colangelo, a jury consultant at Magna Legal Services who isn’t involved in the Roundup litigation.
“That being said, I would expect that, after the last verdict, Bayer and its legal team have re-strategized and retooled their story lines,” York Colangelo said. Bayer has likely spent many hours with focus groups and in mock trials developing a strategy it hopes will be “more palatable” to jurors, she said.
Bayer said in a statement that it remains “confident in the extensive scientific record and regulatory assessments that support the safety of our glyphosate-based herbicides and that they do not cause cancer.”
Bayer shares tumbled following the first three trials, erasing billions in market value and sparking protests by investors about the growing liability risk. The share price has drifted steadily higher as blockbuster verdicts have given way to the quiet of settlement talks. The stock has climbed 40% since late May, when renowned mediator Ken Feinberg agreed to lead the negotiations.
Until it secures a settlement, Bayer has to win some trials or, even better, get some of the first three verdicts reduced or thrown out on appeal, to bring per-plaintiff payouts in any deal down to a reasonable level, said Anna Pavlik, senior counsel for special situations at United First Partners LLC in New York.
While it’s rare for jury verdicts to be overturned completely, the key for Bayer it to persuade appeals courts to disallow some of the most damning evidence that trial judges permitted, she said.
“These trials matter more to Bayer than to the plaintiffs in the sense that it needs any sort of victory under its belt as leverage in settlement negotiations,” Pavlik said.
If Bayer loses the trials in St. Louis and California and fails on appeal to get some of the plaintiffs’ evidence thrown out, “the ultimate fall-out is likely to be significant given the current multimillion dollar jury awards and the growing number of cases,” Pavlik added.
Feinberg said last week that the upcoming trials wouldn’t interfere with any potential settlement. Still, it’s unusual that they’re moving ahead. Bayer said in December that it agreed to postpone some Roundup trials to give mediation a chance, and at least a half-dozen trials scheduled to start this month and next have been put on hold.
In the St. Louis case, lawyers for both sides met Thursday with retired Judge Glenn Norton, who is serving as settlement master for the Roundup cases filed in that court, according to two people familiar with the matter.
The talks didn’t yield a settlement, however, said the people, who asked not to be identified because they weren’t authorized to speak publicly about the negotiations. On Friday, the trial judge put the case on hold without setting a date to resume.
Michael Miller, the lawyer handling the two upcoming trials, said his Orange, Virgina-based Miller Firm represents 5,600 plaintiffs suing over Roundup. Miller’s firm represented plaintiffs in two of the three trials Bayer lost. One of those generated a $2 billion award for a husband and wife that was later reduced by a judge to $86.7 million.
Attorney Steven Brady, who’s leading the Martinez trial for Miller, said in a court filing that the evidence he plans to present in support of punitive damages against Bayer will be “substantially similar” to what juries heard in the previous cases.
That leaves Bayer to try a different approach. York Colangelo said the massive damages in the previous trials reflect emotional, angry juries, which probably understand that billion-dollar verdicts will be reduced but are trying to send a message to the company.
York Colangelo said she expects Bayer to move away from basing its defense on mostly scientific arguments that there’s no proven connection between exposure to Roundup and non-Hodgkin’s lymphoma, the cancer afflicting plaintiffs.
Instead, Bayer is likely to more squarely address the conduct of Monsanto executives that consumers’ lawyers have previously dwelled on, she said. The plaintiffs have alleged that Monsanto tried to hide the health risks of Roundup and ghostwrote influential studies, treating them as scientific propaganda to ensure that glyphosate, the main ingredient in the herbicide, wasn’t classified as carcinogenic.
“I think that has to be a focus for them this time around, instead of ignoring internal memos and emails,” York Colangelo said. Even if Bayer loses again, the company will give a revised strategy one last shot because, she added, “it’s a huge decision to fold your cards and settle.”